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Workers' Compensation

Make Mine A Chimichanga: DE Supreme Court Issues Long-Awaited Ruling On UR Appeal Deadline

You have heard of Doctors without Borders? Church without Walls?  MRI without gadolinium? Well now we have Utilization Review appeal without deadlines.

We have all been anxiously waiting on the DE Supreme Court to rule on the issue of the 45 day UR appeal deadline and whether or not that 5 year period imposed by the Superior Court was gonna stick.  You may recall my post of 2/21/12 titled "Refried Beans":

"Don't know that this is "blog worthy" yet, but just wanted to give you a heads up that the Delaware Supreme Court just granted the employers' requests to appeal the UR statute of limitations cases to the Delaware Supreme Court. As I'm sure you know, the Superior Court's decision invalidating the 45 day deadline and imposing the 5 year statute of limitations was interlocutory, as it reversed and remanded all three cases back to the IAB. Therefore, all three employers filed applications for certification to the Supreme Court under Supreme Court Rule 42. The Court announced today that it would accept the appeals (consolidated

The Supremes decided this last week.  Christiana Care Health Services v. Palomino, Timber Products v. Avila-Hernandez, Berger Brothers v. Munoz,  No. 56, 62, 63, 2012 (Del. Supreme April 11, 2013 [enhanced version available to subscribers].  A big thank you to the dozen or so lawyers who contacted me before the ink was dry.  Nancy Chrissinger Cobb's email arrived with commentary:

So, here's another one for you.  The Supreme Court just affirmed Judge Street's decision on the 45 day UR appeal deadline.  (Regulation 5.5.1.)  In short, UR "appeals" are now governed by the 5 year SOL of 2361.  Go figure.

Interesting read.  It's a 3-2 Decision (CJ Steele and J Berger dissented).  Whether you agree with the outcome or not, both the majority opinion and the dissent suggest that the Supreme Court doesn't really understand the point of UR. (Which isn't surprising given that most of us don't get it either).

I requested some input from those involved and heard from Andy Carmine:

I am disappointed and remain of the opinion that Regulation 5.5.1 and the statute of limitations set forth in 2361 are separate and distinct. I feel that the majority opinion fell into the same trap the Superior Court did (not realizing that the SOL is not conflicted as the claimant can always petition for additional treatment).  However, hats off to Mike [Galbraith] for keeping the issue narrow and focusing the argument on the regulation conflicting with the statute. Mike kept the argument about the victimized claimant, when really it is the doctor who is out $$ when the treatment is denied and a UR appeal is not taken. The claimant can always petition the Board for the same treatment to resume in the future. Hopefully the legislature will correct the issue promptly as the system cannot survive without an appeal deadline.

And  Mike Galbraith, who was directly involved in this case, offers the following:

The Supreme Court's invalidation of the 45-day time limit to contest a UR determination represents an affirmation of a claimant's statutory right to petition the Board to determine whether medical treatment is reasonable and necessary.  Significantly, the absence of any time limit to contest a UR under the authorizing statute, 19 Del. C.§ 2322F(j) [enhanced version available to subscribers], reflects the General Assembly's intent that the five-year statute of limitations would apply.  The majority agreed that Regulation 5.5.1 limited this statutory right and that any time limitation to contest a UR is for the General Assembly and not the Department of Labor to decide.  Interestingly, the majority also clarified that DACD petitions for de novo review of UR determinations are not really "appeals" at all, but instead are like other types of petitions seeking original review by the Board.

Like everyone else other than Mike, I don't get it.  We have a deadline to file an appeal from an IAB merits decision.  It's 30 days.  We have a deadline to file a Motion for Re-argument, which is 10 days.  We have a pre-hearing deadline of 30 days to amend the Pretrial, add claims, or add witnesses. Workers compensation litigation operates on a pretty short tether, unlike the its cousin, the personal injury lawsuit.

Everything about comp is short and sweet for the most part.  It is a painfully brief hearing track, and cases settle early and often.  UR decision turn-around is also aggressive.  As I have said before, if workers comp were a leather volume in a library, it would be the Harlequin romance.  A short sexy read and it's over.  Move on to something else.

Well this now changes everything.  At least as to UR decisions, the days of short and sweet are gone.  Closure is going to become a foreign concept.  And as for that bound volume in the library of the law-well forget the Harlequin romance (which at least was fun).  I am thinking......War and Peace.  Uggghhh!!

Irreverently yours,
Cassandra Roberts

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